Draft Investigatory Powers Bill

The Draft Investigatory Powers Bill was published on 4 November 2015 for consultation. A Joint Committee appointed to report on the Draft Bill published its report on 11 February 2016.

In 2011, JUSTICE recommended that the Regulation of Investigatory Powers Act 2000 (‘RIPA’) be repealed and replaced by a modern legal framework for surveillance more suited to a digital age. Reconciling the right to respect for privacy and the security interests of the wider community requires careful consideration, but the public interests in privacy and security are not mutually exclusive. Surveillance is a necessary activity in the fight against serious crime. When targeted, it can play a vital part in our national security.

Building a legal framework for surveillance in the digital age is now a priority. However, JUSTICE remains concerned that the Draft Bill, like the Draft Communications Data Bill before it, includes broad provision for untargeted and bulk powers of surveillance, and makes limited provision for effective oversight and accountability.

This echoed the crucial conclusions of the Intelligence and Security Committee, chaired by former Attorney General, Dominic Grieve QC, that the Draft Bill is in parts “inconsistent and largely incomprehensible” and generally presents a “missed opportunity” to provide “the clarity and assurance which is badly needed”.

JUSTICE remains concerned about the compatibility of these powers with the provisions of the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union. While others will be better placed to advise the Committee on the practical impact of these powers or the operational case to support them, JUSTICE now hopes that the Government will take the time for further consideration.

More work is needed to meet that gold standard than can be achieved in the short timetable currently set for the Bill’s passage. While the provisions in the Data Retention and Investigatory Powers Act 2014 will lapse in December 2016, there is no other reason for undue haste. Litigation at the European Court on Human Rights and at the Court of Justice of the European Union has the potential to reshape or better clarify the scope of surveillance law in the UK in the coming year.

JUSTICE has urged officials and Ministers to pause and take this Bill back to the drawing board. Any alternative approach would truly be a missed opportunity.

JUSTICE has focused on a number of specific issues in our work on the Draft Bill. Below we provide an overview:

The Draft Bill should be amended to provide for judicial authorisation of warrants as a default, subject to a limited exception for certification by the Secretary of State in some cases involving defence and foreign policy matters. While the Joint Committee on the Draft Bill accepted that a case was made for having Ministerial involvement in authorisations for targeted interception, targeted equipment interference and bulk warrants, it conceded that at least in relation to police warrants, it is questionable whether there needs to be a ministerial element in the authorisation process at all. The Joint Committee stressed that prior judicial authorisation in these cases “would help to allay the concerns of those who believe that ministerial involvement in authorising all warrants may become unsustainable as the number of warrants continue to rise” (paras 420 – 421).

JUSTICE considers that a strong case for judicial control of surveillance decisions has been made. Case law from the domestic courts, the European Court of Human Rights as well as the European Court of Justice, is increasingly emphasising the importance of judicial authorisation to ensure a rigorous oversight regime.

Any provision for judicial authorisation should provide that the Judicial Commissioner is able to conduct a full merits review of the necessity and proportionality of an individual measure. JUSTICE is concerned that the Joint Committee on the Draft Bill accepted the current standard as necessary to maintain “flexibility” in the application of a reviewing role by any Judicial Commissioner (para 433).

Surveillance decisions, by their nature, are taken in secret. It is this secrecy which justifies the greatest legal certainty in the legal framework for surveillance powers. Without any clear message from Parliament on the standard of review to be applied, and in the absence of adversarial argument on the intensity of any scrutiny, any review will be at least perceived as light touch.

The urgent procedure in the Bill should be amended to restrict the capacity for its arbitrary application. JUSTICE welcomes the conclusion of the Joint Committee on the Draft Bill that this measure must be significantly revised (para 453 – 460)

Any modification of warrants should be made by a Judicial Commissioner. JUSTICE welcomes the conclusion of the Joint Committee that the Draft Bill must be amended to remove the power of Ministers and officials to make major changes to warrants without further judicial oversight. The difference between major and minor changes in the Draft Bill is important; at present minor changes can include significant alterations. Any substantive change must be subject to fresh consideration.

Judicial Commissioners considering applications should have access to security vetted Special Advocates to help represent the interests of the subject and the wider public interest in protecting privacy. We welcome the recommendation of the Joint Committee that Judicial Commissioners must have access to both in-house legal expertise and “on-request” security-cleared independent counsel (para 643). JUSTICE considers that the Commissioners should be able to draw on the expertise of Special Advocates at their discretion.

The independence of the Commission will be paramount to its effectiveness. All of the reviewing bodies have emphasised that the independence and effectiveness of the Commissioners and the oversight body will be crucial. We welcome the recommendation that the Draft Bill is redrafted to create an “Investigatory Powers Commission” (the Draft Bill only refers to the Commissioners currently) with clear statutory powers and independence (paras 574 – 575).

The resources for the new Investigatory Powers Commission (‘IPC’) should not be managed by the Secretary of State (who may be subject to its scrutiny). (Any drain on the High Court when judges take up appointments as Judicial Commissioners should be offset by the Treasury.) We welcome the conclusion of the Joint Committee that it would be “inappropriate” for the Home Secretary alone to “determine the budget of the public body which is monitoring her exercise of surveillance powers” (para 604).

The judicial functions of the Judicial Commissioners and the wider investigatory and audit functions of the Commission should remain operationally distinct. While it would, in our view, be beneficial for the Commissioners to be able to draw upon the wider expertise provided by the staff of the Commission, there should be no doubt about their capacity to take independent decisions on individual warrants. The Joint Committee accepted that there needs to be a “clear delineation” of the functions of the Judicial Commissioners to ensure public confidence in their independence and impartiality (para 612).

JUSTICE considers that Judicial Commissioners should be appointed by the Judicial Appointments Commission not the Prime Minister. The Joint Committee on the Draft Bill accepted that the current appointments mechanism should be revised. It suggested that the appointment should be made by the Lord Chief Justice after consultation with a number of bodies including the Judicial Appointments Commission (para 588).

The Draft Bill should be amended to put beyond doubt that the Commission can conduct own-initiative inquiries. The Joint Committee agrees (see, for example, para 626).

Clause 171 on reporting of errors should be substantially amended. At a minimum, it should be accompanied by a mandatory disclosure requirement for individuals targeted for surveillance to be provided with information after-the-event. We welcome the recommendation of the Joint Committee that this provision needs substantial amendment, including to revise the arrangements for disclosure and the threshold at which disclosure may become appropriate (paras 621 – 622).

The Draft Bill should be amended to create a safe-route to the IPC, making clear that communications from officials or Communications Service Providers will not be treated as a criminal offence for any purpose. The Joint Committee agrees and we welcome their recommendation that the Bill be amended. We consider that protection should be offered equally to officials and the employees of Communications Service Providers in their communications with the Commissioners (para 629 – 630).

The new right of appeal from decisions of the Investigatory Powers Tribunal is welcome. The Draft Bill should be amended to clarify that a right of appeal lies from all rulings of the Tribunal, not only final determinations. The route of appeal should be clear on the face of the Bill, not left to be determined in secondary legislation by the Secretary of State. The Joint Committee agreed (para 654 – 656).

JUSTICE considers that the Draft Bill should be amended to modernise the procedures of the IPT. This should include an amendment to provide for the IPT to be able to make declarations of incompatibility pursuant to Section 4, Human Rights Act 1998. JUSTICE particularly welcomes the recommendation of the Joint Committee that there should be a review of the powers and procedures of the IPT. It would be regrettable if the changes necessary were not made in the context of this legislation. The Committee agreed that any statutory framework should make clear that the IPT should have the power to decide when its proceedings should be in public and to make declarations of incompatibility pursuant to the Human Rights Act 1998 (para 663 – 666).

The Draft Bill should be amended to provide greater protection for legal professional privilege and for the communications of politicians and journalists. The Joint Committee was clear that the provision for legal professional privilege must be on the face of the Bill, and that the provisions of the Draft Bill should be revised to more clearly address the privileges of others (para 535 – 556).

The ban on the use of intercepted material in criminal proceedings, in Clause 42, should be removed. The Joint Committee noted the ‘significant perceived benefits’ of using intercept material as evidence and recommended this issue be kept under review. Given the wealth of experience already dedicated to the review of intercept material and its use in criminal trials, and the use of such material in jurisdictions the world over, it would be regrettable if this issue were not addressed in the context of the new surveillance framework (para 675).

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